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Japanese law

A reader in Quora has published an absolutely amazing answer to the question “What is it like to work as a “pusher” in Tokyo’s subway system?” If you have, or if you have not, been a part of the human toothpaste tube that is the Tokyo train system, read about it here.

For my purposes, it’s a brilliant contrast between Japanese and common law legal cultures. Imagine police officers in three countries are sent into the subways to check for criminal behavior, and they see the events in the video above.

That’s an assault in Canada.

Criminal Code of Canada 265.(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly …

Under Canada’s Criminal Code, the hypothetical police officer just watched an assault. No question. That’s not how Canadians treat people! Of course, a Canadian judge would be free to interpret how the Code applied to these circumstances.

That’s an assault in the United States.

New York Penal Law §120.00 A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person …

New Yorkers are tough, and apparently don’t mind getting harmlessly pushed. But if the police officer asked around to find some injuries and evidence of injurious intent or recklessness on the part of Japan Railways (JR) toward the passengers, there’d be a crime. JR policy seems to be to solve every platform overflow problem by crushing people, so … that seems intentional. The Quora author reports that, “every ride, you hear about a couple people fainting from the heat/ lack of oxygen.” So there’s your injuries. (Assault in the 3rd degree is the least serious assault in N.Y. – just a misdemeanor.) As in Canada, an American judge would be free to interpret how the Penal Law applied in these circumstances.

In Japan?

Penal Code of Japan Article 204. A person who causes another to suffer injuryshall be punished byimprisonment with work for not more than 15 years or a fine of not more than 500,000 yen.

Penal Code of Japan Article 208. When a person assaults another without injuring the other person, thepersonshall be punished byimprisonment with work for not more than 2 years, a fine of not more than 300,000 yen, misdemeanor imprisonment without workor a petty fine.

In Japan, there’s just no specific definition of “assault” in the Penal Code, just penalties for whenever “assault” might happen. Is crushing passengers on a train an assault? Maybe? How is a police officer to know? Who’s to say? The law in Japan is “ambiguous and elastic … changed, shaped and sometimes distorted by policemen…”

I AM the law.

Tokyo police are far from corrupt in the sense that kind of ambiguous legal interpretation might suggest in other nations. But if Tokyo police don’t, as a rule, get in the way of train workers doing their job, the Penal Code of Japan isn’t the reason. The police are guided by different, non-semantic legal principles. They’re guided by giri, the particular Japanese ‘collective sense of decency.’ Here’s a short burst from Meryll Dean‘s fascinating book, The Japanese Legal System:

The essence of [the place of law in society] is caught by Takeyoshi Kawashima who likened law in Japan to an heirloom samurai sword: there to be treasured but not used.[19]

However, the presence of law as an object of interest, even reverence, rather than an instrument actively to be used, implies the existence of some other rules for the management of society and settlement of disputes. In broad terms these are the rules of giri. …

[19] Cited by Haley ‘Sheathing the Sword of Justice in Japan: An Essay on Law Without Sanctions’ (1982) Journal of Japanese Studies 265, n 15 and from which he takes inspiration for the title of that article.

…

In Japan the meaning of words used in legal principles or in statutes is taken for granted by Japanese people as being necessarily ambiguous and elastic. Here, the people would not be surprised to discover that the meaning of law sometimes is changed, shaped and sometimes distorted by policemen, prosecutors, lawyers and by judges during the legal process. It is inevitable, of course, in every society that lawyers and judges have to change the meaning of law in order to adjust the existing law to a new set of circumstances after the original legal norms have appeared. In European or Anglo-American societies, however, the scope and manner in which lawyers or judges can change or adapt the meaning of the law to a particular situation or set of circumstances is limited. However, in Japan it seems to me that the limit itself is not as clearly established.

Kawashima, T,’ Japanese Way of Legal Thinking’ (1979) 7 International Journal of Law Libraries 127-31

Though still clearly in the concept stage, last week saw a report by a Japanese group of politicians, business leaders, and academics looking to ease immigration policy and bring in more foreigners. Combined with the efforts to send Japanese teachers to the U.S. to enhance their English, this marks a significant change in stance for Japan, assuming all of these great ideas turn into action.

What role a JET alum lawyer might have is uncertain, but if the plan comes to fruition, certainly immigration law will be a growth area worth considering.

Because, frankly, none of us come to law school knowing the Japanese terminology for tort, negligence, or statute of limitations. (不法行為、 過失、時効、 respectively).

Japanese Law Translation has on online Japanese-English dictionary, as well as English translations of current Japanese law available onilne, for free, at its site. The dictionary is quite good, though there may be some terms lacking (I was unable to get it to produce “Alternative Dispute Resolution,” or 裁判外紛争解決, for example). Nonetheless, it can be a good place to access some Japanese legal terminology. And, at the very least the site can equip you with the kanji compounds for quick shorthand note-taking in the margins of your casebook.